Congressional Record: May 21, 2003 (Senate)
Page S6789-S6843                        


        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2004

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 1050, which the clerk will 
report.		

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                           Amendment No. 779

  Mr. WARNER. On behalf of Senator Allard, I offer an amendment on the 
protection of the operational files of the National Security Agency 
that would strike section 1035 of S. 1050 and replace it with this 
amendment. It is cleared on both sides.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for Mr. Allard, 
     proposes an amendment numbered 779.

  The amendment is as follows:

  (Purpose: To provide a substitute for section 1035, relating to the 
  protection of the operational files of the National Security Agency)

       Strike section 1035 and insert the following:

     SEC. 1035. PROTECTION OF OPERATIONAL FILES OF THE NATIONAL 
                   SECURITY AGENCY.

       (a) Consolidation of Current Provisions on Protection of 
     Operational Files.--The National Security Act of 1947 (50 
     U.S.C. 401 et seq.) is amended by transferring sections 105C 
     and 105D to the end of title VII and redesignating such 
     sections, as so transferred, as sections 703 and 704, 
     respectively.
       (b) Protection of Operational Files of NSA.--Title VII of 
     such Act, as amended by subsection (a), is further amended by 
     adding at the end the following new section:


          ``operational files of the national security agency

       ``Sec. 705. (a) Exemption of Certain Operational Files From 
     Search, Review, Publication, or Disclosure.--(1) Operational 
     files of the National Security Agency (hereafter in this 
     section referred to as `NSA') may be exempted by the Director 
     of NSA, in coordination with the Director of Central 
     Intelligence, from the provisions of section 552 of title 5, 
     United States Code, which require publication, disclosure, 
     search, or review in connection therewith.
       ``(2)(A) In this section, the term `operational files' 
     means--
       ``(i) files of the Signals Intelligence Directorate, and 
     its successor organizations, which document the means by 
     which foreign intelligence or counterintelligence is 
     collected through technical systems; and
       ``(ii) files of the Research Associate Directorate, and its 
     successor organizations, which document the means by which 
     foreign intelligence or counterintelligence is collected 
     through scientific and technical systems.
       ``(B) Files which are the sole repository of disseminated 
     intelligence, and files that have been accessioned into NSA 
     Archives, or its successor organizations, are not operational 
     files.
       ``(3) Notwithstanding paragraph (1), exempted operational 
     files shall continue to be subject to search and review for 
     information concerning--
       ``(A) United States citizens or aliens lawfully admitted 
     for permanent residence who have requested information on 
     themselves pursuant to the provisions of section 552 or 552a 
     of title 5, United States Code;
       ``(B) any special activity the existence of which is not 
     exempt from disclosure under the provisions of section 552 of 
     title 5, United States Code; or
       ``(C) the specific subject matter of an investigation by 
     any of the following for any impropriety, or violation of 
     law, Executive order, or Presidential directive, in the 
     conduct of an intelligence activity:
       ``(i) The Committee on Armed Services and the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives.
       ``(ii) The Committee on Armed Services and the Select 
     Committee on Intelligence of the Senate.
       ``(iii) The Intelligence Oversight Board.
       ``(iv) The Department of Justice.
       ``(v) The Office of General Counsel of NSA.
       ``(vi) The Office of the Inspector General of the 
     Department of Defense.
       ``(vii) The Office of the Director of NSA.
       ``(4)(A) Files that are not exempted under paragraph (1) 
     which contain information derived or disseminated from 
     exempted operational files shall be subject to search and 
     review.
       ``(B) The inclusion of information from exempted 
     operational files in files that are not exempted under 
     paragraph (1) shall not affect the exemption under paragraph 
     (1) of the originating operational files from search, review, 
     publication, or disclosure.
       ``(C) The declassification of some of the information 
     contained in exempted operational files shall not affect the 
     status of the operational file as being exempt from search, 
     review, publication, or disclosure.
       ``(D) Records from exempted operational files which have 
     been disseminated to and referenced in files that are not 
     exempted under paragraph (1), and which have been returned to 
     exempted operational files for sole retention shall be 
     subject to search and review.
       ``(5) The provisions of paragraph (1) may not be superseded 
     except by a provision of law which is enacted after the date 
     of the enactment of the National Defense Authorization Act 
     for Fiscal Year 2004, and which specifically cites and 
     repeals or modifies such provisions.
       ``(6)(A) Except as provided in subparagraph (B), whenever 
     any person who has requested agency records under section 552 
     of title 5, United States Code, alleges that NSA has withheld 
     records improperly because of failure to comply with any 
     provision of this section, judicial review shall be available 
     under the terms set forth in section 552(a)(4)(B) of title 5, 
     United States Code.
       ``(B) Judicial review shall not be available in the manner 
     provided for under subparagraph (A) as follows:
       ``(i) In any case in which information specifically 
     authorized under criteria established by an Executive order 
     to be kept secret in the interests of national defense or 
     foreign relations is filed with, or produced for, the court 
     by NSA, such information shall be examined ex parte, in 
     camera by the court.
       ``(ii) The court shall determine, to the fullest extent 
     practicable, the issues of fact based on sworn written 
     submissions of the parties.
       ``(iii) When a complainant alleges that requested records 
     are improperly withheld because of improper placement solely 
     in exempted operational files, the complainant shall support 
     such allegation with a sworn written submission based upon 
     personal knowledge or otherwise admissible evidence.
       ``(iv)(I) When a complainant alleges that requested records 
     were improperly withheld because of improper exemption of 
     operational files, NSA shall meet its burden under section 
     552(a)(4)(B) of title 5, United States Code, by demonstrating 
     to the court by sworn written submission that exempted 
     operational files likely to contain responsible records 
     currently perform the functions set forth in paragraph (2).
       ``(II) The court may not order NSA to review the content of 
     any exempted operational file or files in order to make the 
     demonstration required under subclause (I), unless the 
     complainant disputes NSA's showing with a sworn written 
     submission based on personal knowledge or otherwise 
     admissible evidence.
       ``(v) In proceedings under clauses (iii) and (iv), the 
     parties may not obtain discovery pursuant to rules 26 through 
     36 of the Federal Rules of Civil Procedure, except that 
     requests for admissions may be made pursuant to rules 26 and 
     36.
       ``(vi) If the court finds under this paragraph that NSA has 
     improperly withheld requested records because of failure to 
     comply with any provision of this subsection, the court shall 
     order NSA to search and review the appropriate exempted 
     operational file or files for the requested records and make 
     such records, or portions thereof, available in 
     accordance with the provisions of section 552 of title 5, 
     United States Code, and such order shall be the exclusive 
     remedy for failure to comply with this subsection.
       ``(vii) If at any time following the filing of a complaint 
     pursuant to this paragraph NSA agrees to search the 
     appropriate exempted operational file or files for the 
     requested records, the court shall dismiss the claim based 
     upon such complaint.
       ``(viii) Any information filed with, or produced for the 
     court pursuant to clauses (i) and (iv) shall be coordinated 
     with the Director of Central Intelligence before submission 
     to the court.
       ``(b) Decennial Review of Exempted Operational Files.--(1) 
     Not less than once every 10 years, the Director of the 
     National Security Agency and the Director of Central 
     Intelligence shall review the exemptions in

[[Page S6838]]

     force under subsection (a)(1) to determine whether such 
     exemptions may be removed from a category of exempted files 
     or any portion thereof. The Director of Central Intelligence 
     must approve any determination to remove such exemptions.
       ``(2) The review required by paragraph (1) shall include 
     consideration of the historical value or other public 
     interest in the subject matter of a particular category of 
     files or portions thereof and the potential for declassifying 
     a significant part of the information contained therein.
       ``(3) A complainant that alleges that NSA has improperly 
     withheld records because of failure to comply with this 
     subsection may seek judicial review in the district court of 
     the United States of the district in which any of the parties 
     reside, or in the District of Columbia. In such a proceeding, 
     the court's review shall be limited to determining the 
     following:
       ``(A) Whether NSA has conducted the review required by 
     paragraph (1) before the expiration of the 10-year period 
     beginning on the date of the enactment of the National 
     Defense Authorization Act for Fiscal Year 2004 or before the 
     expiration of the 10-year period beginning on the date of the 
     most recent review.
       ``(B) Whether NSA, in fact, considered the criteria set 
     forth in paragraph (2) in conducting the required review.''.
       (c) Conforming Amendments.--(1) Section 701(b) of the 
     National Security Act of 1947 (50 U.S.C. 431(b)) is amended 
     by striking ``For purposes of this title'' and inserting ``In 
     this section and section 702,''.
       (2) Section 702(c) of such Act (50 U.S.C. 432(c)) is 
     amended by striking ``enactment of this title'' and inserting 
     ``October 15, 1984,''.
       (3)(A) The title heading for title VII of such Act is 
     amended to read as follows:

            ``TITLE VII--PROTECTION OF OPERATIONAL FILES''.

       (B) The section heading for section 701 of such Act is 
     amended to read as follows:


``protection of operational files of the central intelligence agency''.

       (C) The section heading for section 702 of such Act is 
     amended to read as follows:


``decennial review of exempted central intelligence agency operational 
                               files.''.

       (d) Clerical Amendments.--The table of contents for the 
     National Security Act of 1947 is amended--
       (1) by striking the items relating to sections 105C and 
     105D; and
       (2) by striking the items relating to title VII and 
     inserting the following new items:

              ``Title VII--Protection of Operational Files

``Sec. 701. Protection of operational files of the Central Intelligence 
              Agency.
``Sec. 702. Decennial review of exempted Central Intelligence Agency 
              operational files.
``Sec. 703. Protection of operational files of the National Imagery and 
              Mapping Agency.
``Sec. 704. Protection of operational files of the National 
              Reconnaissance Office.
``Sec. 705. Protection of operational files of the National Security 
              Agency.''.

  The PRESIDING OFFICER. Is there further debate on the amendment?
  If not, without objection, the amendment is agreed to.
  The amendment (No. 779) was agreed to.
  Mr. WARNER. I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

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